Examination of Witnesses (Questions 400-419)|
CLANCY OBE AND
10 MARCH 2008
Q400 Earl of Onslow: What was that?
The fishing boat case was the important one, was it not?
Ms O'Neill: Yes.
Q401 Earl of Onslow: But since then
John Laws has said that if that Act had said "irrespective
of the 1971 Act" it would have been a sovereign Act of Parliament.
I think that should be always borne in mind when we discuss these
Ms O'Neill: I suspect there are
books we could write on this particular topic. In terms of the
balance between the judiciary and the legislature, it is not inconceivable
that a power to strike down legislation as being incompatible
could co-exist with the supremacy of Parliament. As things currently
stand, if an Act of the UK Parliament is found to be incompatible
with the Convention then the most that a court can do is make
a declaration of incompatibility. There is nothing conceptually
which would prevent an amendment which would have the result of
allowing the courts to strike down that legislation but leave
it open to Parliament to reinstate that legislation by, for example,
a greater than absolute majority if that was one way of looking
to protect the rights of an individual who was affected by the
breach. There are different ways in which you could order things
so as to provide both a judicial power of strike-down but retain
the ultimate supremacy of Parliament should Parliament decide
to reinstate that legislation.
Earl of Onslow: An easy way of doing
that is to make a law not subject to the Parliament Acts of 1911
Chairman: That is you trying to entrench
your position, is it?
Q402 Lord Dubs: You have just said
the courts do not have the power to strike down Scottish legislation.
Ms O'Neill: My apologies. The
Scottish courts do not have the power to strike down Acts of the
UK Parliament. They have power to strike down Acts of the Scottish
Q403 Lord Dubs: But there has been
no occasion when they have done so?
Ms O'Neill: No.
Q404 Lord Dubs: Therefore it would
follow, you would agree, that the courts should also be given
the right to strike down legislation if in their view it is contrary
to the British Bill of Rights? A bit hypothetical, that.
Ms O'Neill: Yes.
Q405 Lord Dubs: There is no reason
why that should not be the practice?
Ms O'Neill: No, none at all.
Chairman: But only if the Bill of Rights
applies in Scotland, which goes back to my earlier question.
Q406 Lord Dubs: Yes, of course.
Ms O'Neill: Yes, and, without
over-complicating it, of course the Bill of Rights could apply
in Scotland in relation to reserved matters but not to devolved
matters. It could have partial application.
Mr Clancy: I think that is the
Government's intention, that the Green Paper will have application
to reserved matters rather than devolved matters. There was an
indication given after a speech by Michael Wills MP on Wednesday
last week at the Constitutional Unit.
Q407 John Austin: Does it matter
whether they are devolved or reserved matters? One of the witnesses
has said to us that as human rights are not reserved to Westminster
the Scottish Parliament's consent would be required for the enactment
of any British Bill of Rights. Is that your interpretation?
Ms O'Neill: That is a matter of
politics rather than law. As a matter of political convention
the Scottish Parliament's consent is sought whenever Westminster
legislates on something which the Parliament could itself legislate
about, but that has no legal foundation.
Q408 John Austin: Let me take it
further to clear my mind. Reference was made to the UN Convention
on the Rights of the Child. In ratifying that Convention it would
be the UK Parliament that ratified on behalf of the UK, but the
Home Secretary has said that the UK will ratify by the end of
this year the Convention on trafficking, which will be therefore
legally binding not only on British institutions but also on Scottish
institutions which are responsible for delivering certain services,
so is the Scottish Parliament's consent required for the UK's
ratification of the Convention on trafficking, for example?
Mr Clancy: No, it is not. That
is a prerogative power.
Q409 Chairman: Even though it would
impact on the Scottish legal system?
Mr Clancy: Yes.
Q410 John Austin: And you will be
responsible for complying?
Mr Clancy: Yes.
Earl of Onslow: When the Government signs
a treaty the articles in the treaty have to be brought in by legislation
rather than by royal prerogative, so presumably the Government
signs the treaty, the UK Parliament passes it where England is
concerned and the Scottish Parliament passes it where Scotland
Q411 John Austin: If it were, say,
the Convention on trafficking, the UK Government are saying it
has to be compliant before it can ratify but it cannot be compliant
unless it is assured that the devolved Parliaments and Assemblies
are also compliant?
Mr Clancy: Yes, that is right.
We were just thinking about an example where a recent treaty has
been implemented in the UK. The International Criminal Court came
to mind and you will remember that there was legislation to implement
that treaty, the Rome Statute, in the Houses of Parliament in
2003, I think it was, and that applied throughout the United Kingdom.
But there were also provisions which related exclusively to devolved
aspects, and so therefore a Bill was brought forward by now Lord
Wallace of Tankerness to implement those provisions in the devolved
setting and it related to things like the powers of the police
and search warrants and things like that.
Q412 Earl of Onslow: What happened
over the American extradition treaty? Did that apply automatically?
Mr Clancy: The fact is that in
international law the state party to any international treaty
is the United Kingdom. When the United Kingdom is bound by that
treaty all parts of the United Kingdom are bound by that treaty.
If it were the case that a devolved administration, either here,
in Belfast or in Cardiff, refused to implement some aspect of
an international treaty, then the United Kingdom would be obliged,
through the United Kingdom Parliament, to implement it effectively
directly through the powers in the Scotland Act. Remember that
under section 28(7) of the Scotland Act, "This section does
not affect the power in Parliament of the United Kingdom to make
laws for Scotland", so the legal position is that the UK
Parliament could enact legislation which would apply in Scotland.
The Sewel Convention, which operates through a process of legislative
consent motions in this Parliament, is one which is a constitutional
convention. It is not a matter of law. The matter of law is contained
in section 28(7) of the Scotland Act I think that in the unhappy
circumstance where an international treaty was being flouted by
a devolved administration to the UK's peril by being put in breach
of those international obligations the UK would only have one
John Austin: So there is not a requirement
of the Sewel Convention? There is a desirability to achieve consensual
Q413 Chairman: But the bottom line
is that the Westminster Parliament can enforce its will over Scotland
if Scotland does not comply with an international treaty requirement.
Mr Clancy: Section 28(7) is the
embodiment and I know the Earl of Onslow will be happy at this,
of the supremacy of the United Kingdom Parliament, or the Imperial
Q414 Lord Dubs: Could I go back to
something we were discussing a little while ago? If the British
Government was set on introducing a Bill of Rights and if there
was reasonable support for the principle in Scotland, is it therefore
possible that the British Government could have its Bill of Rights
but have a Scottish version to allow local circumstances to be
included for that part which is applicable to Scotland?
Ms O'Neill: Yes, there is no reason
Q415 Lord Dubs: Is that the way forward?
Mr Clancy: That is a political
Q416 Lord Dubs: It is partly political
but partly in terms of the feasibility. It would be quite feasible,
would it not, to have a Bill of Rights for England and then, in
consultation with Scotland, such changes as were appropriate to
Scotland could be added and the whole thing would then stand up
Mr Clancy: If the Scottish Parliament
agreed to that course of action then there would be no let or
hindrance on it.
Q417 Earl of Onslow: The question
I would like to ask, and this is again for my own information,
for those of us who felt that the American Extradition Act was
an act of barbarism, which I do feel, is, did the Scottish Parliament
have to change their law for that or does extradition apply?
Ms O'Neill: My understanding is
that extradition is a matter which is reserved to the Westminster
Parliament and therefore the Scottish Parliament would have
Q418 Earl of Onslow: No say?
Ms O'Neill: Has no legislative
say. I cannot recall whether there was any political debate in
this Parliament about the advisability or not of the Extradition
Treaty but there would be no legislative input from this Parliament
in terms of ratifying that treaty.
Q419 Chairman: That is our questions
exhausted. Is there anything you would like to add to anything
you have had to say to us today, which we think has been very
Mr Clancy: No, I do not think
so. Thank you very much for your consideration and for your interesting
Chairman: Thank you for your interesting